BLUE ENERGY HOLDINGS LLC, A NEVADA LIMITED LIABILITY COMPANY vs TODD J. MITCHELL, et al.

Motions:

1. Defendants Domonique Rodriguez and Pickford Real Estate, Inc. dba Berkshire Hathaway Homeservices California Properties’ (“Defendants”) Demurrer to Plaintiff’s Complaint

2025CUFR041449: BLUE ENERGY HOLDINGS LLC, A NEVADA LIMITED LIABILITY COMPANY vs TODD J. MITCHELL, et al.

2. Defendants Motion to Strike Portions of the Complaint

Tentative:

Demurrer

Defendants’ Demurrer to the First, Second, and Third Causes of Action is SUSTAINED, with leave to amend. (Code Civ. Proc §430.10, subd. (e).)

“’The well-known elements of a cause of action for fraud are: (1) a misrepresentation, which includes a concealment or nondisclosure; (2) knowledge of the falsity of the misrepresentation, i.e., scienter; (3) intent to induce reliance on the misrepresentation; (4) justifiable reliance; and (5) resulting damages. [Citation]. The same elements comprise a cause of action for negligent misrepresentation, except there is no requirement of intent to induce reliance. [Citation]. In both causes of action, the plaintiff must plead that he or she actually relied on the misrepresentation.” (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 (Cadlo).)

“The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. [Citation.]” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)

Plaintiff has not pled the first, second or third causes of action with sufficient specificity as to these defendants. When alleging fraud (or causes of action based upon fraud) general and conclusory allegations do not suffice. This particularity requirement necessitates pleading facts which “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645, citing to Stansfield v. Starkey (1990) 220 Cal.App.3d. 59, 74; see also Chapman v. Skype Inc. (2013) 220 Cal.App.4th, 217, 231 [intentional misrepresentation]; Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 900-901; RSB Vineyards, LC v. Orsi (2017) 15 Cal.App.5th 1089, 1102 [negligent misrepresentation].)

As to the first and third causes of action, Plaintiff alleges that defendants made affirmative misrepresentations regarding the condition of the property, to wit: (1) the property was comprised of two living units; (2) there was a title defect as to the size and scope of the property rights conveyed that was not disclosed or otherwise misrepresented as to the size of the property conveyed; (3) the roof did not contain defects and did not need to be replaced; (4) the gas line did not contain defects and did not need to be replaced; (5) the sewer line did not contain defects and did not need to be replaced; (6) the HVAC system did not contain defects and did not need to be replaced; and (7) that neighbors congregate in the area, but there was no gang activity. (Complaint, ¶¶ 21, 39.) With the exception of item (1) where the AVID contains statements identifying two separate units, the Complaint is devoid of allegations as to Defendants’ awareness of the defects set forth in items (2) through (6) and is devoid of any allegations to “show how, when, where, to

2025CUFR041449: BLUE ENERGY HOLDINGS LLC, A NEVADA LIMITED LIABILITY COMPANY vs TODD J. MITCHELL, et al.

whom, and by what means” the alleged affirmative misrepresentations in items (2) through (7) were tendered.

As to the second cause of action, plaintiff has not alleged that defendants were aware of the defects set forth in items (2) through (6).

Statute of Limitations

Defendants contend that the 2-year statute of limitations set forth in Civil Code section 2079.4 bars each of the first, second and third causes of action. Section 2079.4 states:

In no event shall the time for commencement of legal action for breach of duty imposed by this article exceed two years from the date of possession, which means the date of recordation, the date of close of escrow, or the date of occupancy, whichever occurs first.

The two-year statute of limitations on claims for a real estate broker's breach of statutory duties does not apply to actions for intentional fraud. (Williams v. Wells & Bennett Realtors, (1997) 52 Cal. App. 4th 857. To the extent the cause of action for negligent misrepresentation is derived from the statutory duty to inspect and disclose, it is subject to the two-year limitation. (Id. at 865 citing to Loken v. Century 21–Award Properties (1995) 36 Cal.App.4th 263.) Therefore, only the third cause of action may be time barred; but because the Complaint does not allege the date of recordation, close of escrow, or occupancy, the demurrer is not well taken on this ground. (Lockley v.

Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881 [“A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred.’ [Citations.] It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. [Citations.]”].)

Motion to Strike

Defendants’ Motion to Strike the Complaint is DENIED, without prejudice, as MOOT in light of the Court’s ruling on Defendants’ Demurrer.

Plaintiff is granted leave to file a First Amended Complaint on or before June 1, 2026.

Defendants shall provide notice.

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